Review ban on ‘no jab, no work’ policy

Last March, the Department of Labor and Employment (Dole) issued a circular prohibiting employers from adopting a “no vaccine, no work” policy.

It states that while employers should encourage their employees to get vaccinated, their failure or refusal to do so is not a ground for their dismissal. Neither can such failure or refusal be used to justify discrimination in terms of tenure, promotion, training, pay and other employment benefits.

Thus, if an employer wants to have his or her employees vaccinated at no cost to them to minimize infection at the work premises, and some of them refuse for one reason or another, the employer cannot bar the holdouts from reporting for work or terminate their employment.

It is only when any of them show symptoms of infection and test positive for COVID-19 that the employer can take either action.

If the termination option is chosen, the employer can invoke the Labor Code provision, which states that the services of an employee may be terminated if he or she is “found to be suffering from any disease and whose continued employment is … prejudicial to his health as well as to the health of his coemployees.”

There is no question about the altruistic objective of the circular. It aims to minimize loss of jobs in these times when the pandemic is still raging.

But is it fair to compel an employer who is willing to have his or her employees vaccinated at no expense to them to continue to employ those who refuse to receive that protective medical procedure?

It does not make good business (as well as medical) sense in, for instance, a 20-person staff for two or three “antivax” employees to be allowed to remain in close contact with their vaccinated colleagues at the work area. That would be like putting rotten mangoes in a basket of fresh mangoes.

In light of the surge of the Delta variant of the virus and the need to keep business operations going, it may be opportune for the Dole to review the proposal to make an employee’s vaccination a requirement for continued employment if the employer is willing to shoulder the costs of vaccination.

That requirement may be looked at as: (a) an effort of the employer to encourage employees to get vaccinated and, in the process, contribute to the government’s objective of achieving herd immunity as soon as possible; and (b) a means to be able to continue to operate with the assurance that the employees are reasonably protected from the virus.

This does not mean, however, the employer would be given a free or unfettered hand in implementing a “no jab, no job” policy.

If, for example, a female employee refuses to get vaccinated because she is pregnant and is worried the vaccine may adversely affect her baby, then her vaccination can be deferred until after she delivers.

In case the refusal to be vaccinated is based on medical grounds, the employer can engage the services of a medical specialist to validate that claim. Depending on the medical findings and after discussing them with the employee, the employer can decide whether or not to order the vaccination under pain of job loss.

If the refusal is based on fear of the needle because of an unpleasant injection experience in the past, the employer should be allowed to talk to the employee and convince him or her of the benefits of vaccination, employment-wise.

Admittedly, the exercise of this discretion is susceptible to abuse. But what right or privilege in this country has not been misused or abused? If that happens, the employee who loses his or her job because of what he or she believes as an unreasonable application of a “no vaccine, no work” rule, the Dole’s assistance is available in getting relief.

The idea is to tone down the application of the Dole’s circular by giving employers some leeway or discretion in using vaccination as a requirement for continued employment.

A middle ground has to be reached between the Dole’s mandate to protect the interest of employees and the right of employers to manage their business in the manner they see fit within the bounds of law. INQ

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